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HomeMy WebLinkAbout83-566 HillingMs. Constance J. Hilling Blair County Court Reporting Agency 2600 Fifth Avenue Altoona, Pennsylvania 16602 RE: Conflict of Interest; Section 3(c) Dear Ms. Hilling: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 20, 1983 ADVICE OF COUNSEL 83 -566 This responds to your letter of May 19, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether you, as City Clerk for the City of Altoona and owner of the Blair County Court Reporting Agency and the Copy Shoppe, would incur any conflict or appearance of a conflict of interest with the public trust if you, in your capacity as a private businesswoman, submitted a bid to the Pennsylvania Department of Labor anti Industry, Workers' Compensation Board, for stenographic reporting services and thereafter, reported Workers' Compensation hearings yourself. Facts: You currently serve as City Clerk for the City of Altoona. Your private business endeavors include the Blair County Court Reporting Agency and The Copy Shoppe. You are submitting a bid to the Commonwealth of Pennsylvania, Department of Labor and Industry, Workers' Compensation Board, for stenographic reporting services. The reporting services would be handled by one of your employees, but if the necessity should arise, you would handle the workers' compensation hearing if you were awarded the bid. You are concerned that such activity on your part would constitute a conflict of interest, and you have, therefore, requested advice from the State Ethics Commission. Discussion: Initially, the Ethics Commission notes that its jurisdiction is strictly limited by the Ethics Act, 65 P.S. 401 et seq. and, therefore, this advice discusses only your duties and obligations under the Ethics Act in relation to the question presented. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Ms. Constance J. Hilling. June 20, 1983 Page 2 As City Clerk for the City of Altoona, you are a "public official" and generally subject to requirements of the Ethics Act, 65 P.S. 401 et seq. While the Act contains some restrictions against contracting with the governmental body with which you are associated, see Section 3(c), in this case the governmental body with which you are associated is the City of Altoona, the Act does not generally prohibit a person from engaging in outside employment on their own time or generally place restrictions on contracting with another governmental body, such as the Department of Labor and Industry. Essentially, the Ethics Act precludes any employment or situations which would constitute a conflict of interest with your public employment. The Ethics Commission has defined "confict of interest" as exising where an individual represents two or more persons whose interests are adverse to each other. See Alfano, 80 -007. In your situation, it does not appear that the interests of the City Altoona and the Pennsylvania Department of Labor and Industry, Workers' Compensation Board, for stenographic reporting services, are adverse to one another. Accordingly, serving as City Clerk for the City of Altoona concurrently, with engaging in such stenographic work, would not be a per se conflict of interest under the Ethics Act per se. You should, however, be aware of some of the restrictions applicable to you under the Act. Section 3(a), 65 P.S. 403(a) prohibits an public employee from using his public employment or confidential information received through public employment to obtain financial gain for himself or his family or business with which he is associated, in this case, your stenographic services or the Copy Shoppe. In addition, Section 3(b), 65 P.S. 403(b) precludes any person from offering a public employee any thing of value, including a promise of future employment, based on the understanding that his official actions would be influenced thereby. These restrictions are cited not to indicate any violations of the Ethics Act in the situation in which you described but to serve as a point of reference and guide for conduct in general. As mentioned above, Section 3(c), 65 P.S. 403(c), also provides that no public official, member of his immediate family or any business in which the person or a member of his immediate family is an officer, director or owner of greater than 5% of the equity at fair market value may contract with the govermental body unless the contract, valued at more than $500, has been awarded through an open and public process. See Howard, 79 -044. Previous opinions of the Commission have held, however, that the term "governmental body" in Section 3(c) refers to the governmental body with which the public official is "associated." Bran, 80 -014 and Lynch, 79 -047. Therefore, the "open and public process" limitation of Section 3(c) applies to you only if you and your firms contract with the City of Altoona -- the governmental body with which you are associated -- in the course of your operations. In the Ms. Constance J. Hilling June 20, 1983 Page 3 circumstances you present, however, there does not appear to be any prohibition or restriction under Section 3(c) of the Ethics Act to be placed on the proposed contract between your firms and the Commonwealth, because the Commonwealth is not deemed to be the governmental body" with which you are associated. Therefore, Section 3(c) of the Ethics Act presents no obstacle to the proposed contract between your firm and the Commonwealth. For future reference, however, it should be emphasized that there is no prohibition on your firms contracting with the governmental body with which you are associated, that is the City of Altoona, provided that any contract valued in excess of $500 is awarded in an open and public process. In its opinion in Howard, 79 -044, the Commission stated that an open and public process meets the following criteria: 1. Prior public notice; and 2. public disclosure of all proposals considered; and 3. public disclosure of the award of the contract. If these standards are complied with, your firms could contract even with the City of Altoona for a contract in excess of $500 should the opportunity present itself. In addition, with regard to your question of whether you, yourself, could cover a Workers' Compensation hearing, the Commission sees no reason to restrict such activity. Again, this is because the Commonwealth, unlike the City of Altoona, does not constitute the governmental body with which you are associated. In this regard, the Ethics Act presents no obstacle in your proposed activity in covering Workers' Compensation hearings should you be awarded the bid. Conclusion: As a public employee, you should avoid conflicts and the appearance of such conflicts by complying with the requirements of Sections 3(a) and (b) by not using confidential information gained through your public employment to obtain financial gain and by not accepting any thing of value in return for favorable official actions. Under Section 3(c), you or your business may contract with the City of Altoona if the contract valued at greater than $500 is awarded through an open and public process, as delineated above. However, Section 3(c) is not applicable to you nor does it impose an open and public process requirement in your endeavor to obtain a contract with the. Commonwealth, because the Commonwealth does not constitute the governmental body with which you are associated. The Ethics Act does not restrict your activity in covering workers' compensation hearings should you be awarded the contract with the Commonwealth. Ms. Constance J. Hilling June 20, 1983 - r Page 4 Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp cc; Bruce R. Hockman, Director ., Barry Stern, Secretary Sincerely, !dra S. Ch General Cou stianson el